Keyboard Jihadist?

The government prosecuted Tarek Mehanna because of what he wrote online in a case that raises fundamental questions about First Amendment rights in post-9/11 America.

It’s unusual for a domestic terrorism suspect to have a fan club. But every morning of Tarek Mehanna’s eight-week trial late last year on federal terrorism charges, supporters packed the domed, ornate courtroom in downtown Boston, smiling and waving whenever Mehanna turned to face them.

Their support was unflagging, even though Mehanna was charged with crimes prosecutors called “among the most serious a person can commit,” including material support of terrorism and conspiracy to kill American soldiers in Iraq. The government had been collecting information on Mehanna, a 29-year-old second-generation Egyptian American, for more than eight years. In court, prosecutors provided transcripts from online chats in which Mehanna had praised Osama bin Laden, calling him “my real father,” and invited friends over for “movie night” to watch a video of a beheading in Iraq that he called “Head’s Up.” Most damning, the government also claimed that Mehanna had gone to Yemen to find a terrorist training camp and had translated documents and videos at the request of al-Qaeda.

None of this evidence fazed Mehanna’s defenders. They spoke about the Mehanna they knew. A passionate and caring teacher at the local mosque. A dedicated scholar of Islam who shared his passion for arcane texts. A pharmacist who had landed a job at Saudi Arabia’s top hospital before being arrested. They accused law enforcement of targeting an upstanding member of the Muslim community for speaking his mind about America’s wars in the Middle East.

This was more than just a difference in perception. The Mehanna case represented a fundamental departure from the hundreds of domestic terrorism prosecutions in post–September 11 America. Mehanna had not been caught buying weapons from an FBI informant or parking a car bomb in Times Square. The crimes he was charged with centered on what he said and wrote—and why. Mehanna, according to the government, was part of the “media wing of al-Qaeda.” Prosecutors claimed he had lived a “double life”: a “dutiful and scholarly man” whose true self was “angry, callous, and calculating.” They argued that Mehanna’s intent was to inspire jihad through his keyboard—and that, they asserted, made his translations a crime.

But Mehanna never participated in or planned a terrorist act. He never knowingly communicated with terrorists. This was precisely the kind of case that civil libertarians had been warning about since the Patriot Act was passed in 2001. Because of a thin thread linking Mehanna’s translations to al-Qaeda, the government was asserting that the First Amendment did not protect his speech. The case raised, in a new way, the specter of how far the government will go in prosecuting citizens under the guise of keeping us safe. When does political speech cross the line into support for terrorism?

Tarek Mehanna grew up in a large suburban home in Sudbury, about 45 minutes from Boston. His father, Ahmed, taught at the nearby Massachusetts College of Pharmacy. His mother ran a day care on the first floor. The home boasts a grand foyer with a chandelier, and an enormous kitchen and dining room where the Mehannas hosted dinner parties almost weekly for other Muslim families in the area.

Mehanna’s room remains the same as it was the day he was arrested. Unlike the rest of the house, it is austere. A picture of the Hajj hangs above a twin bed. A set of weights rests on the floor. A dry-erase board lists daily goals: Memorize a page of the Quran, study one subject, read one chapter, do one round of exercises, review one page. Dominating the room are floor-to-ceiling shelves filled with leather-bound texts covered in gilded Arabic script, with a few books by Noam Chomsky and Robert Fisk mixed in. During family vacations to Egypt, Mehanna would search used-book stores for rare volumes of Islamic law and haul the books back in his suitcase.

His parents tried to strike a balance between passing down their culture and bringing up their two boys as American kids. Tarek and his younger brother, Tamer, went to public school, but they remained devout Muslims. “Praying, fasting on Ramadan, we didn’t change here,” says their mother, Souad, who emigrated from Egypt with her husband in 1978. “It wasn’t easy for them during the holidays. They felt different, a little bit, being the only one in class taking the days off.”

The Mehannas didn’t try to stop their children from assimilating. Tarek collected comic books. He told the judge at his sentencing that it was Batman, not religion, that initially formed his worldview: “Batman implanted a concept in my mind, introduced me to a paradigm as to how the world is set up: that there are oppressors, there are the oppressed, and there are those who step up to defend the oppressed.”

After comic books, Mehanna graduated to rock and roll. He wasn’t just a fan of Nirvana; Tamer says he was the resident expert among his friends. “You’d go into my brother’s room,” Tamer says, “and he had binders of histories of the band, discographies, rare LPs. My brother always wanted to know everything about what he was interested in.”

During high school, Mehanna trained that focus on history. “I read about Paul Revere, Tom Paine, and how Americans began an armed insurgency against British forces—an insurgency we now celebrate as the American Revolutionary War,” he said during his sentencing. “I learned about Emma Goldman, Eugene Debs, and the struggles of the labor unions, working class, and poor.”

Mehanna was always religious, but around the time he graduated high school in 2000, he became orthodox. He was particularly inspired by America’s most famous Muslim, Malcolm X. “Malcolm’s life taught me that Islam is not something inherited, it’s not a culture or ethnicity,” he said. “It’s a way of life, a state of mind anyone can choose, no matter where they come from or how they were raised.”

Islam appealed to Mehanna because it provided an answer for the big questions: not only why we exist but also how we should exist. “And since there’s no hierarchy or priesthood, I could directly and immediately begin digging into the texts of the Quran and the teachings of Prophet Muhammad,” he said, “to begin the journey of understanding what this was all about, the implications of Islam for me as a human being, as an individual, for the people around me, for the world. And the more I learned, the more I valued Islam like a piece of gold.”

His mother watched his transformation with pride. “I wondered how they would grow up here, in a different culture with different values,” she says. “So I was happy he wanted to learn Arabic and be close to God. But at the same time, nothing had changed. We lived a normal life. We were not strict. We were very social with Americans.”

Mehanna cleaned the Nirvana records out of his room. He sold his guitar. He grew out his beard. He brought the same exacting passion to Islam that he had brought to Nirvana and Batman. He immersed himself in learning classical Arabic, which is akin to mastering Shakespearean English. He began to translate and post online ancient Islamic texts that English speakers wouldn’t have access to.

His friend Mohamed Bahe, now a radiology student in New York, got to know Mehanna by reading his blog. “He had hundreds and hundreds of translations on marriage, prayer, dealing with fellow kinsman, friends, how to be a good Muslim,” says Bahe. “His blog dealt with all aspects of life, which is what I really liked about it.”

Mehanna’s spiritual awakening came on the cusp of a traumatic time for American Muslims. First there was 9/11. In the aftermath of the attacks, thousands of Muslims in America were questioned by law enforcement. The American Civil Liberties Union reported that 70 Muslims were detained, some for months, although few were eventually charged with a crime. Then the U.S. invaded Afghanistan and Iraq. Mehanna was furious over the wars. “I saw the effects of ‘shock and awe’ in the opening day of the invasion—the children in hospital wards with shrapnel from American missiles sticking out of their heads. Of course, none of this was shown on CNN,” he said. “My sympathy for the oppressed continued but was now more personal, as was my respect for those defending them.”

For a devout Muslim, there’s no drinking or carousing with women. There’s a lot of intense study and regular daily prayers. It’s hard to relate to American teenagers and their testosterone-fueled antics. Not surprisingly, Mehanna gravitated toward a small group of devout Muslims he’d known for years.

His two closest friends were Ahmad Abousamra and Kareem Abu Zahra, the children of family friends who had been coming to the Mehanna dinner parties since they were in elementary school. Tamer says Abousamra had a long-standing reputation as a rebel. “He was always going against the grain,” he says. “He combined a defiance of authority with a strong sense of assertion.” In 2002, Abousamra traveled to Pakistan twice; according to the government, he went to train as a jihadist. “He was a maverick, kind of a cowboy,” says Tamer, who now works as a business consultant. “It wasn’t easy to change his mind. He had endurance and would wear you down.”

Kareem Abu Zahra was more of a follower. According to Tamer, he started hanging out with Mehanna and Abousamra after struggling in school. “In our society, that’s a huge deal. I’m sure that left Kareem adrift, and [Islam] gave his life meaning.”

Tarek Mehanna was the intellectual of the crew. From 2001 to 2004, he continued adding translations to his blog while working toward his Ph.D. in pharmacy. He and his friends watched the wars unfold and cheered on the insurgents striking American forces. Then, according to the government, in 2004 Mehanna went from being an angry young American to something far more serious—a man willing to go to Iraq to fight U.S. soldiers.

In 2003, Abousamra had traveled to California to meet a man named Jason Pippin, who visited Yemen in the 1990s and, according to the government, trained with the militant group Lashkar-e-Taiba in Pakistan. Pippin testified in court that Abousamra left California with a couple of names of Yemenis who could steer the three friends to the mujahideen. Abu Zahra paid for the California trip, and he subsequently gave Pippin $5,000 to come along to Yemen. (Pippin did not end up going.) Abu Zahra also paid for Mehanna’s and Abousamra’s plane tickets to Yemen as well as his own. Before departing, Abu Zahra left a martyr video for his family.

FBI agents taped conversations between Mehanna and Abu Zahra about Yemen long after the trip. Even in these private moments, Mehanna never directly acknowledged going there to find a terrorist training camp; he talked about looking for schools. However, he spoke about the trip in a cagey manner at times and appeared to refer to searching for the jihadi contacts that Pippin had passed on. At one point, Mehanna talked about searching the country for an old man he and Abousamra had been told to contact, presumably to ask where they could find a jihadi training camp. Tarek recounted what the man told them: “All that stuff is gone. Ever since the planes hit the Twin Towers.”

***

Abu Zahra ended up flying back before reaching Yemen, when word came that his father was ill. After seven days in Yemen, Mehanna returned alone to Boston and went back to school. According to the government, Abousamra continued on to Fallujah, Iraq, to volunteer for the insurgency.

The government considered what Mehanna did when he got back to the U.S. to be at least as dangerous as whatever he might have planned to do in Yemen. In 2005, Mehanna began to translate pro-jihad texts on At-Tibyan Publications, an English-language online forum for Muslim extremists. The government built much of its case around Mehanna’s most famous translation, 39 Ways to Serve and Participate in Jihad. Among the 39 Ways are items like “Truthfully Ask Allah for Martyrdom.” This is not, however, the operational terrorist manual its title might lead one to expect. Rather, it’s a document written in 2003 by a Saudi man named Isa al-Awshin that includes no instructions for building IEDs or planning terrorist attacks. (Little is known about al-Awshin; he may or may not have been affiliated with al-Qaeda.) Most of the document encourages ways to participate in jihad that don’t involve fighting: donating money to the cause, helping the families of the injured or imprisoned, abandoning luxury, even learning to swim and ride a horse. It also encourages true believers to speak out for the mujahideen and defend them—a fact the prosecution used to argue that Mehanna believed his keyboard activism was a form of jihad.

Most of the prosecutors’ evidence against Mehanna came from 2006. It was the worst year in the Iraq War. The insurgency was at its height and the civilian death toll peaked that July, with at least 1,000 Iraqis dying that month, and perhaps three times that many. Mehanna was glued to the news coming out of Iraq. His mother remembers the day she came home to find her son crying. He told her that U.S. soldiers had raped a 14-year-old Iraqi girl and killed her family. “And Tarek hardly [ever] cried,” she says. “It was very difficult for him. I can’t forget that day. His dad even talked to him, to try to calm him down.”

Afterward, Mehanna and his friends passed around an al-Qaeda video showing the bodies of two U.S. soldiers who’d been dragged behind a truck and then set on fire, purportedly in retaliation for the rape. During an online chat intercepted by the FBI, Mehanna cheered the insurgents’ bloody response: “Texas BBQ is the way to go,” he wrote.

Like many 20-somethings, Mehanna was constantly chatting online with his friends, and he provided a wealth of crude comments for prosecutors to use against him. The government excerpted a chat in which he and a friend are watching a video called The Expedition of Umar Hadid, apparently produced by al-Qaeda in Iraq. It shows a tank destroyed by an IED, and Mehanna writes to his friend: “def caused some major organ bleeding.” His friend replies: “hahaha.” Around this time, Mehanna and two other friends visited Ground Zero and posed smiling at the site with fingers pointed into the air.

In 2006, Mehanna gave a fiery speech at a nearby mosque criticizing a report by the U.S.–based think tank the RAND Corporation that suggested the U.S. government promote moderate Muslim beliefs. Afterward, someone approached his father and said, “If I didn’t know he was your son, I’d think he was an extremist.”

His parents warned Tarek to tone it down. “He was stubborn,” says Souad Mehanna. “He would say, ‘I am not doing anything wrong, so you don’t have to worry about anything. This is America, we can say anything.’”

It first became a crime for an American to provide “material support or resources” to a group designated as a foreign terrorist organization in 1996, after the Oklahoma City bombing. According to the Anti-Terrorism and Effective Death Penalty Act of 1996, the definition of “material support or resources” is providing any service or tangible or intangible property, except medicine and religious materials—including, among other things, money and weapons—to a designated foreign terrorist organization. After 9/11, Congress expanded that definition, first in the Patriot Act and then again in the Intelligence Reform and Terrorism Prevention Act of 2004. “Material support or resources” now includes providing “training and expert advice or assistance” to any group that one knows is designated by the government as a terrorist organization or that one knows commits terrorist acts.

The material-support law gave the government an important tool in stanching the flow of money to foreign terrorist organizations, says Peter Margulies, an expert in national-security law at Roger Williams University. “Terrorist groups are often regulated by governments that are weak or perhaps even hostile to us,” Margulies says. “We need strong rules to stop them from getting resources.” The law was used in 2008 to convict the founders of the nation’s largest Islamic charity, the Holy Land Foundation for Relief and Development, for giving more than $12 million to Hamas. It was the largest terrorism-financing prosecution in U.S. history.

Because a broad range of activities can fall under the category of “training and expert advice or assistance,” the expansion of material-support laws sent a chill through foreign-aid organizations that realized their work could suddenly be illegal. Six organizations and two individuals who wanted to continue to provide support for the lawful, nonviolent activities of two groups that were designated terrorist organizations filed a constitutional challenge to the “material support” statute. One of the groups, the Humanitarian Law Project, had been teaching peaceful conflict-resolution skills to the Kurdish Workers’ Party, a designated terrorist group.

In June 2010, the Supreme Court ruled that, although the law may not be clear in every application, its terms were clear as it applied to the plaintiffs because their activities fell within the scope of “training and expert advice or assistance.” Moreover, the Court said that providing services, even training that discouraged violence, to these terrorist organizations could free up money to advance terrorism because the groups do not maintain financial firewalls between their terrorist operations and their non-terrorist operations. “Human-rights groups can be used as dupes,” says Margulies, “and we want to prevent that.”

David Cole, a Georgetown law professor who represented the Humanitarian Law Project, says these justifications are reminiscent of the McCarthy era. “These are the same arguments that were made about communism in the 1950s, when Congress made it illegal to support the Communist Party because its aim was overthrowing the U.S.,” Cole says. “But then the courts ultimately rejected that argument and said that if you punish people for being part of the Communist Party, you could actually be punishing them for lawful activities like labor organizing.”

Civil libertarians view the Court’s ruling as creating a terrorist exception for First Amendment protection. Previously, it was legal to advocate for criminal activity, even acts of terrorism, as long as your speech wasn’t likely to lead to “imminent activity.” Now, civil libertarians fear that your speech can be found illegal if it is done in “coordination” with a designated terrorist group. However, the Court emphasized that “independent advocacy,” even in support of a terrorist organization, remained legal.

That is where the Mehanna case became controversial. The government presented no evidence that Mehanna was directly in touch with al-Qaeda or even believed he was working for the group. Instead, prosecutors relied on an instant message between two men who had been convicted of terrorism in the United Kingdom, Younis Tsouli and Waseem Mughal. Mughal stated in the chat that al-Qaeda wanted help translating a video and asked if At-Tibyan Publications would help. In a later chat, a third man named Ehsamul Sadequee said he would ask if Mehanna would do it. But Mehanna was not privy to that exchange and in fact did not respond to a request from At-Tibyan to translate the al-Qaeda video.

Still, Margulies argues that the exchanges were enough to prove that Mehanna’s work was part of al-Qaeda’s operations. “Intent is vital here,” he says. “Clearly the folks Mehanna worked with at At--Tibyan thought his work was valuable and unique. The default position for Islam is that we live in peace. But the 39 Ways says you are excused from that default duty. You are authorized to commit violence. That’s why he was prosecuted—he was a key link in the chain.”

If the government could imprison Mehanna for what it believed about his intent, it would create a precedent that civil libertarians say is dangerous. Cole says we should have already learned this lesson. “Before it was communism, and before that, it was anarchism,” Cole says. “Now it’s terrorism. We have an interest in living in a society where the government doesn’t get to pick and choose what ideas are permissible to express.”

The government used Mehanna’s translations to portray him as part of “the media wing of al-Qaeda.” The phrase comes from a February 2006 chat that Mehanna had about publishing 39 Ways with a man using the screen name Abu Mundhir. It was Mundhir who bragged, “We are [al-Qaeda in Iraq’s] media wing … hehe.” Mehanna’s reply: “Man, I don’t think we deserve that title. Maybe if we are lucky we get to clean their toilets.”

There’s no disputing the fact that Mehanna admired al-Qaeda, at least for a time. But the government offered no evidence that he continued to feel that way after 2006, when his views began to moderate. By February 2008, in a post on his blog, Mehanna was using Islamic law to question the notion that it’s permissible to target women and children in jihad. When people challenged this view in the comments, he insisted, “no matter how you justify it, the prophet expressed in crystal clear terms that it is strictly forbidden to target women and children in war.”

His friend Mohamed Bahe says that Mehanna didn’t try to push him to jihad but instead pulled him back from the edge. Bahe wasn’t particularly religious before 9/11. “People used to call me Mo,” he says. “After 9/11, I saw the attitudes towards me change because of my name. Before I was just a buddy, now I’m a Muslim.” That experience, he says, made him want to learn more about his faith, which is what led him to Mehanna’s blog on Islamic law. After the U.S. attacked Iraq, Bahe’s response was purely emotional. “My opinion was, if they target you, then you attack back, simple as that,” he says. “My main issue was collateral damage. My view was the government is attacking Muslims. Who is supporting them? The American taxpayer. So my rationale was, every American is responsible.”

At first, Mehanna agreed. But Bahe says that Mehanna evolved past this kind of thinking. He says Mehanna taught him to approach the issue with logic, not emotions. For instance, Mehanna pointed out that Bahe’s father paid taxes, even Bahe himself paid taxes, and therefore it was ridiculous to say that Americans should die just because they paid taxes. “He really got me out of my immature, kill-them-all thinking,” Bahe says.

Mehanna didn’t just have these arguments with friends. He posted on At-Tibyan Publications, using Islamic law to argue that the Quran prohibited killing civilians and using suicide bombers, in direct contrast to the views of al-Qaeda. As early as 2005, he became involved in a debate on At-Tibyan with other members who believed that American civilians were fair targets. Others argued that because America was a democracy, all citizens were responsible for the war. Mehanna argued that this logic was flawed. First, he pointed out that some of the largest anti-war demonstrations in the world happened in American cities. He noted that almost half of Americans voted for John Kerry, the anti-war candidate. “So, after looking at these two realities with a just mind, one can no longer use the argument that … every single American in the world, civilian or military, can be killed on the spot,” he wrote. “No—rather, those who fight us should be fought.”

***

“When the administrators of At-Tibyan saw that,” Bahe says, “they could only argue back like children, accusing him of being a moderate, an American. Finally, they just banned him from the group. That’s when I left as well.”

As Mehanna broke with At-Tibyan and began to argue against al-Qaeda tactics, the U.S. government was growing more concerned about the growth of online jihadi forums. In July 2008, the Senate Committee on Homeland Security released a report, “Violent Islamic Extremism, the Internet and the Homegrown Terrorist Threat.” The report specifically cited 39 Ways and argued that sites like At--Tibyan Publications were like “virtual terrorist training camps,” because they gave zealots the relationships and knowledge they needed to plan an attack.

One expert prominently quoted was Marc Sageman, a sociologist and forensic psychiatrist who has consulted with the FBI and served as the NYPD scholar in residence on terrorism, helping to create models that identify terrorists before they have a chance to act. His book, Leaderless Jihad, compares biographical information about terrorists with a control sample of people who may sympathize with terrorists but never hurt anyone. He says in the Homeland Security report that the al-Qaeda hierarchy is no longer as important as online grassroots networks: “The true leader of this violent social movement is the collective discourse on a half-dozen influential forums. They are transforming the terrorist movement.”

The FBI’s first visit to the Mehanna home came in October 2005, more than a year after the trip to Yemen. Mehanna’s mother remembers it well. The man at the door, she says, identified himself as agent Tom Davis. “I asked, ‘How can we help you?’ He asked, ‘Is that Tarek’s car?’ He said, ‘The person driving this car was on a bridge taking pictures on Monday and Wednesday.’ I laughed and told him, ‘This car has broken down—it has been in the driveway for two weeks.’”

Around the same time as the first FBI visit, Mehanna claims that a man he’d never met approached him and began suggesting that they do something. “Eventually, this ‘something’ that he was hounding me to ‘do’ emerged as a plan of his to find American soldiers returning from Iraq (whose addresses he supposedly had) and kill them,” Mehanna wrote on the “Free Tarek” website. “He would show up at my house uninvited, and always try to steer the conversation in this direction, and I would steer it away and bury it, but he would never give up. Finally, I told this individual to never contact me again.”

During Mehanna’s trial, his defense attorneys heard from an Associated Press reporter that a source at the NYPD had told him that the department had sent an informant to provoke Mehanna into action. According to the source, the Justice Department was furious when it found out, and several NYPD officers rushed to Boston to apologize to the feds for interfering. The AP reported in March that the NYPD admitted there was contact with Mehanna but claimed that it was “inadvertent, part of an unrelated investigation with clear New York ties.”

In the discovery phase of the trial, one of Mehanna’s lawyers, J.W. Carney Jr., asked the prosecutors to hand over any information about an NYPD agent contacting Mehanna. The prosecutor said, “We are not aware of any such contact,” and asked to speak with the judge in his quarters without the defense team present. The next day, the motion was denied. “I don’t look at the prosecution in paranoid ways,” says Janice Bassil, another of Mehanna’s lawyers. “I don’t assume they’re doing things in bad faith. But for the first time in 34 years of practicing law, I called a prosecutor an F-ing liar. I’d never done that before.” The jury heard nothing about an NYPD provocateur.

The FBI never tried to goad Mehanna into action, but agents were watching him. In August 2006, while the Mehannas were visiting family in Egypt, agents broke into their home and seized copies of Tarek’s hard drive. Around this time, the FBI began recording his phone calls, including a conversation he had with a friend named Daniel Maldonado who called from Somalia. As the FBI listened in, Maldonado tried to convince Mehanna to join him in jihad. The FBI visited Mehanna the next day. They didn’t tell him they were listening to the call. When the agents asked Mehanna if he knew where Maldonado was, he told them he was in Egypt.

It’s a felony to lie to a federal agent. On April 23, 2008, the agents approached Mehanna when he was leaving the hospital where he worked and told him that they could charge him. “They said that I had a choice to make: I could do things the easy way, or I could do them the hard way,” Mehanna said at his sentencing. “The easy way, as they explained, was that I would become an informant for the government, and if I did so, I would never see the inside of a courtroom or a prison cell.”

After their talk with Mehanna, the FBI agents, Tom Davis and Heidi Williams, visited his parents at home. Souad opened the door and invited them in. “They told me, ‘We met your son and asked him to cooperate with us. He refused. We have tape of him making a false statement, and we can make your life a living hell,’” she says. “I felt they were trying to scare us.”

The FBI denies the Mehannas’ account. “It was never said, ‘You can do this the easy way or the hard way,’” says Damon Katz, chief division counsel for the FBI’s Boston division. “We never said, ‘You can cooperate or be prosecuted.’ That’s not what happened here.”

The family waited for Tarek to be arrested. Months went by. Mehanna graduated with a Ph.D. from the Massachusetts College of Pharmacy. Shortly after graduation, he was offered a job at a hospital in Saudi Arabia, where he could fulfill his dream of living in a Muslim country. On November 8, 2008, as he was boarding a plane to leave for Saudi Arabia, Mehanna was arrested and charged with making false statements to a federal officer. He was released on bail and went back home to live with his parents. On October 21, 2009, he was arrested again and this time charged with seven counts, including conspiracy, material support for terrorism, and making false statements. He was refused bail and placed in solitary confinement.

Mehanna’s trial began last November at the federal courthouse in Boston. The prosecution spent seven weeks presenting its case. U.S. attorneys had collected hundreds of thousands of documents—text and photos they’d found on Mehanna’s hard drive, chats he had with his friends, material culled from jihadi websites. Prosecutors used dozens of thumbnail images from Mehanna’s computer of Osama bin Laden and of the Twin Towers burning—images he hadn’t downloaded but which were saved in his computer’s cache after he read news articles or blog posts—to suggest that he was collecting photos to gloat over.

***

The government called six of Mehanna’s friends to testify against him in exchange for immunity. One was Daniel Maldonado, who faced life in prison for fighting in Somalia until he took a plea bargain that included testifying against Mehanna. Maldonado testified that when he tried to convince Mehanna to join him in Somalia, Mehanna asked about whether there were bookstores there. “Dude, I’m just looking for a place I can pray five times in a Mosque,” he said. Under cross-examination, Maldonado testified that Mehanna had discouraged him from going to fight in Somalia before he had left, telling him to think first about his family.

The prosecution’s most significant witness was childhood friend Kareem Abu Zahra, who had financed the trip to Yemen, including buying Mehanna’s plane ticket. He testified that he planned with Abousamra and Mehanna to attack shoppers at a mall and that he had tried to buy guns to use in the attack. (Although Mehanna was not charged with domestic terrorism plans, the prosecutors used this to establish his “state of mind.”) He said he also planned to attack a nearby Air Force base and testified that he had discussed assassinating John Ashcroft and Condoleezza Rice with Mehanna and Abousamra. In other words, he admitted to all the crimes that Mehanna was charged with—and more. Thanks to the immunity he received for testifying, he has not been charged on any counts.

Defense attorney Carney would later say during sentencing that “the difference in the treatment of Tarek Mehanna and Kareem Abu Zahra is breathtaking in its audacity.” During the trial, Mehanna’s attorneys emphasized that there was no evidence other than Abu Zahra’s testimony that Mehanna had even discussed domestic terrorist attacks. They pointed out discrepancies between Abu Zahra’s testimony in front of the grand jury, especially in regard to Mehanna’s role in planning terrorist acts, and what he said in court. For example, Abu Zahra had told the grand jury, “I don’t know about [Mehanna and Abousamra], but I was looking and talking about the shopping mall.” On cross-examination, Carney asked, “There was never any agreement among the three of you to actually go out and do them?” Abu Zahra answered, “There was not.”

Mehanna’s lawyers did not dispute that Abousamra and Abu Zahra had gone to Yemen to train with jihadists. They argued, however, that Mehanna had a separate reason for going on the trip. Yemen is renowned for schools that teach a pure version of classical Arabic along with a brand of fundamentalist Islam called Salafi. Mehanna, according to his attorneys, saw an opportunity to take a study trip. He was on break from college, and Abu Zahra was willing to pay his way.

Mehanna’s team presented an intellectual defense. They brought experts like Andrew March, a professor of political science at Yale and an expert on Islamic law, who quoted from Mehanna’s At-Tibyan posts that did not support the government’s argument that Mehanna was part of al-Qaeda. At one point in 2005, Mehanna argued against others who were celebrating a terrorist attack on a school. “Wow ... killing school teachers ... quite a victory for Islam,” Mehanna commented sarcastically.

March believes that Mehanna rejected many of the core tenets of al-Qaeda and used his increasing knowledge of Islamic jurisprudence to build his case against the organization’s rationale for terrorism. While on At-Tibyan, Mehanna often referred to a concept called aman, a contract that dictates how Muslims treat their host countries. “Under conservative Islamic theory, Muslims living in non-Muslim countries are under aman,” March said in a post-trial interview. “Even if the country is at war with Muslims, as long as you are living under a regime that protects your life, property, and freedom to manifest your religion, you are also under a contract of mutual security with them.” In other words, there is no Islamic justification for domestic terrorism.

March points to the apparent contradictions between what Mehanna wrote on At-Tibyan Publications and the more crude statements in his instant messages with friends from around the same time. “In one medium, he’s instant messaging and being macho with his friends,” March says. “And at other times, he is debating in this public forum and being more moderate. That’s the challenge with basing a prosecution on intent. People say different things at different times. We are unreliable narrators of our deepest views and intentions.”

The final defense witness was the most surprising: Marc Sageman, the FBI and NYPD consultant who was quoted in the 2008 Homeland Security Committee report. That report was a blueprint for the prosecution’s case. But Sageman testified that Mehanna was no threat. He noted that al-Qaeda has had little success raising money or recruiting on the Internet and asserted that images broadcast on CNN and Fox News have more impact on terrorist activity than a document like 39 Ways. “People turn to violence because they are morally outraged by what they see happening in the world,” Sageman said after the trial. “I’ve never heard of anyone who said, ‘I read the 39 Ways to Serve and Participate in Jihad’ and then went out and killed people. According to my experience, the ones who talk are not necessarily the ones who act out. People progress from talking to exhibiting violent behaviors. There’s no indication that Tarek Mehanna was going to do anything.”

If Mehanna wasn’t a threat, why did the government prosecute him? “Because he turned the FBI down when they asked him to inform on his friends,” Sageman said. “They are vindictive.”

On December 20, after deliberating for ten hours, the jury found Mehanna guilty on all counts.

Eight years after their trip to Yemen, the three childhood friends from suburban Boston found themselves in different circumstances. Ahmad Abousamra, by all accounts the most committed jihadist of the group, was living in Syria. Two weeks after being interviewed by the FBI in 2006, he boarded a plane to leave the United States. He was identified and questioned by Border Control agents before departure. “It was the day after Christmas,” says defense attorney Bassil. “I’m betting there was no one at the head office to issue an arrest warrant.”

Kareem Abu Zahra was residing near Boston with his wife and two kids and working as a computer technician for the University of Massachusetts, Lowell.

Tarek Mehanna was facing life in prison.

On April 12, more than 200 of Mehanna’s supporters crowded the federal courthouse for the sentencing. So many people showed up that another room had to be opened to accommodate the crowd, with the proceedings piped in. When Mehanna entered the courtroom, the spectators stood in respect.

Prosecutors had received hundreds of letters encouraging mercy from mainstream leaders in New England, including the boards of directors of four local mosques and the Islamic Council of New England. Still, prosecutors recommended 25 years, arguing that a lengthy sentence was necessary to prevent Mehanna from committing further crimes and to send a message to others who might champion violent extremism online.

Defense attorney Carney argued that the prosecution “doesn’t want the defendant punished for what he did but punished for the statements he made, punished for taking the case to trial, punished for not being an informant.” He attacked the prosecution for basing its case on speech protected by the First Amendment. Carney also pointed out that Mehanna was 21 years old when he went to Yemen, and argued that it’s not uncommon for young people to see the world in black and white. “When I was that age, I hated the British and considered joining the IRA. I know that feeling.” But, Carney argued, Mehanna had matured beyond those views. Carney asked the judge to sentence Mehanna to six and a half years in prison.

Finally, it was Mehanna’s chance to speak for the first time. He stood in his bright-orange prison vest and, without notes, addressed the judge in a measured tone. Mehanna said that “it’s because of America that I am who I am” and spoke of comic books, Malcolm X, and the leaders of the American Revolution who had once gathered just blocks from the courthouse and attacked British troops. “There’s an Arabic word to describe what those Minutemen did that day. That word is ‘jihad.’”

Mehanna spoke about the deals he’d been offered by the FBI and the visit he’d gotten from a government provocateur. He offered this assessment of the trial: “I wasn’t tried before a jury of my peers, because with the mentality gripping America today, I have no peers. Counting on this fact, the government prosecuted me—not because they needed to but simply because they could.”

He concluded, “I learned one more thing in history class: America has historically supported the most unjust policies against its minorities—practices that were even protected by the law—only to look back later and ask: ‘What were we thinking?’ Slavery, Jim Crow, the internment of the Japanese during World War II—each was widely accepted by American society, each was defended by the Supreme Court. But as time passed and America changed, both people and courts looked back and asked, ‘What were we thinking?’”

Mehanna sat down. It was an uncompromising speech without apology or remorse for the crimes he’d been convicted of. He’d been calm and focused throughout. As soon as he finished speaking, U.S. Assistant Attorney Aloke Chakravarty rose to say that everything Mehanna had said about the FBI was “categorically false.” Suddenly, Mehanna’s poise flashed to anger. “You’re a liar! You’re a liar! Sit down!” he shouted over the prosecutor. Two security officers moved in and one put a hand on Mehanna’s shoulder as if to hold him in his seat.

The judge announced that the court would adjourn for 15 minutes. Mehanna’s backers surged into the hallway. A palpable sense of defiance filled the crowd, a bit giddy from the performance. Mehanna’s father stood with well-wishers all around him. He told me that he was surprised by Mehanna’s statement. “He didn’t even let his lawyers see what he wrote—he didn’t want to be edited,” he said. “I didn’t expect him to be so eloquent.”

Then he sighed. “It will be a long sentence. I don’t care. I’m proud of him.”

After the break, Judge George O’Toole Jr. returned and said that Mehanna’s performance had proved that he was the charismatic and articulate leader that prosecutors had portrayed. “I am frankly concerned by the defendant’s apparent absence of remorse, notwithstanding the jury’s verdict,” he said.

O’Toole sentenced him to 17 and a half years in prison. (His attorneys are appealing the conviction.) Mehanna was shackled and taken away. He’s likely to end up in the only federal supermax prison in the country, in Florence, Colorado. He’ll be on lockdown for 23 hours a day, with no access to a computer.

How three young undocumented activists risked everything to expose the injustices of immigrant detention—and invented a new form of protest.

About the Author

Michael May is the former managing editor of the Texas Observer, teaches radio documentary at the Salt Institute in Portland, Maine, and is a frequent contributor to shows like All Things Considered and This American Life, where a radio version of his piece on young immigrant activists appeared.